United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE.
brought this action against defendants HomeBridge Financial
Services, Inc., formerly known as Real Estate Mortgage
Network, Inc. ("HomeBridge" or
"REMNI"); Federal National Mortgage Association
("Fannie Mae"), individually and as Trustee for
Fannie Mae REMIC Trust 2008-81; Branch Banking & Trust
Company ("BB&T"); and Mortgage Electronic
Registration Systems, Inc. ("MERS") (collectively,
"Defendants") in the 155th Judicial District Court
for Austin County, Texas. Defendants Fannie Mae, BB&T,
and MERS removed the action to this court and defendants
Fannie Mae and BB&T counterclaimed for judicial
foreclosure. Pending before the court is
Defendants' Amended Motion for Summary Judgment
("MSJ") (Docket Entry No. 52) . For the reasons
explained below, the motion will be granted.
August of 2008 plaintiff David Johnson obtained a home equity
loan secured by his principal residence (the
"Property"). Johnson executed a $273, 000 Texas Home
Equity Note (the "Note")and Texas Home Equity
Security Instrument (the "Security
Instrument") (together "the Loan Agreement")
in favor of REMNI.Johnson's loan was assigned to Fannie
Mae in October of 2008 and has since been serviced by
BB&T. Johnson defaulted on the loan and BB&T
sent him a Notice of Default in May of 2014. Fannie Mae,
through its counsel, then sent Johnson a Notice of
Acceleration on January 14, 2015. Johnson has not made any
payments on the loan since receiving the Notice of
Default. Johnson alleges causes of action for (1)
quiet title, (2) violation of the Texas Deceptive Trade
Practices-Consumer Protection Act ("DTPA"),
and (3-5) fraudulent court record and fraudulent claims
against real property. Defendants Fannie Mae, BB&T, and
MERS have moved for summary judgment on all of Johnson's
claims and Fannie Mae and BB&T (together,
"Counter-Plaintiffs") have moved for summary
judgment on their counterclaim for judicial
Defendants' Motion for Summary Judgment
Standard of Review
judgment is appropriate if the movant establishes that there
is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). Disputes about material facts are genuine "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (198 6) . The
moving party is entitled to judgment as a matter of law if
"the nonmoving party has failed to make a sufficient
showing on an essential element of her case with respect to
which she has the burden of proof." Celotex Corp. v.
Catrett, 106 S.Ct. 2548, 2552 (1986) .
moving for summary judgment "must 'demonstrate the
absence of a genuine issue of material fact, ' but need
not negate the elements of the nonmovant's
case." Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (quoting
Celotex, 106 S.Ct. at 2553). "If the moving
party fails to meet this initial burden, the motion must be
denied, regardless of the nonmovant's response."
Id. If, however, the moving party meets this burden,
"the nonmovant must go beyond the pleadings" and
produce evidence that specific facts exist over which there
is a genuine issue for trial. Id. (citing
Celotex, 106 S.Ct. at 2553-54). The nonmovant
"must do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 106 S.Ct. 1348, 1356 (1986) .
reviewing the evidence "the court must draw all
reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the
evidence." Reeves v. Sanderson Plumbing Products,
Inc., 120 S.Ct. 2097, 2110 (2000). Factual controversies
are to be resolved in favor of the nonmovant, "but only
when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Little, 37 F.3d at 1075.
Johnson is proceeding pro se, the court construes
his pleadings liberally. See Erickson v. Pardus, 127
S.Ct. 2197, 2200 (2007) ("A document filed pro
se isxto be liberally construed, ' and
'a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers.'" (citations omitted)
(quoting Estelle v. Gamble, 97 S.Ct. 285, 292
seeks "quiet title" to the Property. A suit to
remove cloud or to quiet title accords an equitable remedy.
Katz v. Rodriguez, 563 S.W.2d 627, 629 (Tex. Civ.
App.-Corpus Christi 1977, writ ref'd n.r.e.) . It exists
"to enable the holder of the feeblest equity to remove
from his way to legal title any unlawful hindrance having the
appearance of better right." Essex Crane Rental
Corp. v. Carter, 371 S.W.3d 366, 388 (Tex. App.-Houston
[1st Dist.] 2012, pet. denied) (citations omitted); Hahn
v. Love, 321 S.W.3d 517, 531 (Tex. App.-Houston [1st
Dist.] 2009, pet. denied). The plaintiff has the burden of
supplying the proof necessary to establish his superior
equity and right to relief-that is, that he has a right of
ownership and that the adverse claim is a cloud on the title
that equity will remove. Essex Crane, 371 S.W.3d at
387-88; Hahn, 321 S.W.3d at 531. The plaintiff must
show (1) an interest in a specific property, (2) title to the
property is affected by a claim by the defendant, and (3) the
claim, although facially valid, is invalid or unenforceable.
Vernon v. Perrien, 390 S.W.3d 47, 61-62 (Tex.
App.-El Paso 2012, no pet.) (citation omitted).
as the court can tell from the Amended Petition,
Johnson's primary basis for asserting that
Defendants' claim on his title is invalid or
unenforceable is that the entire loan transaction is
"null and void" because the original lender failed
to disclose the "real party" or "real
terms" of the transaction by failing to disclose its
intent to sell his loan. Johnson had notice that the loan may
be sold, however, because the Security-Instrument explicitly
states that "[t]he Note or a partial interest in the
Note (together with this Security Instrument) can be sold one
or more times without prior notice to
Borrower." Johnson cites generally to the Truth in
Lending Act, 15 U.S.C. § 1601 et seq., and
"SEC rules, " but assuming arguendo that
there was a violation at the time of the original
transaction, the court can find no basis under either
authority to nullify the Loan Agreement.
TILA cause of action is also barred by the statute of
limitations, as is apparent from the face of the Amended
Petition. "The general statute of limitations for
damages claims under the TILA is one year after the
violation." Williams v. Countrywide Home Loans,
Inc., 504 F.Supp.2d 176, 186 (S.D. Tex. 2007) (citing 15
U.S.C. § 1640(e)), aff'd, 269 Fed.App'x
523 (5th Cir. 2008). "'The violation
"occurs" when the transaction is consummated.
Nondisclosure is not a continuing violation for purposes of
the statute of limitations.'" Moor v. Travelers
Ins. Co., 784 F.2d 632, 633 (5th Cir. 1986) (quoting
In re Smith, 737 F.2d 1549, 1552 (11th Cir. 1984)).
"The credit transaction is consummated at the moment
'a contractual relationship is created between [a
creditor and a consumer] .'" Williams, 504
F.Supp.2d at 186 (quoting Bourgeois v. Haynes
Construction Co., 728 F.2d 719, 720 (5th Cir. 1984)).
The credit transaction at issue was consummated on August 8,
2008. This suit was brought on February 26, 2016, more than
seven years later. Plaintiff's TILA claims are therefore
alleges no other factual basis for his quiet title claim.
Johnson's remaining allegations are conclusory,
unsupported, and raise no genuine issue of material fact as
to the validity of Defendants' claim on title.
Accordingly, summary judgment is appropriate on Johnson's
quiet title claim.
Violation of the DTPA
argues that Defendants, specifically REMNI, violated §
17.46 (b) (24) of the DTPA by failing to inform him
that it intended to sell his loan. "To prove a violation
of the DTPA, [a] plaintiff  must prove that: (1) [he is] a
consumer, (2) victimized by false, misleading, or deceptive
acts, failures to disclose, or an unconscionable course of
action, (3) which was a 'producing cause' of
damages." Streber v. Hunter, 221 F.3d 701, 727
(5th Cir. 2000) (citing Doe v. Boys Clubs of Greater
Dallas, 907 S.W.2d 472, 478 (Tex. 1995)). Johnson had
notice that his loan may be sold. Moreover, as
Counter-Plaintiffs argue, Johnson's DTPA claim fails
because he is not a consumer. "Generally, a person
cannot qualify as a consumer if the underlying transaction is
a pure loan because money is considered neither a good nor a
service." Fix v. Flaqstar Bank, FSB, 242 S.W.3d
147, 160 (Tex. App.-Fort Worth 2007, pet. denied) (citing
Riverside National Bank v. Lewis, 603 S.W.2d 169,
173-74 (Tex. 1980)). Because there is no evidence before the
court that the transaction at issue was anything other than a
pure loan, the court concludes that Johnson is not a
"consumer" under the DTPA. Accordingly, summary
judgment is appropriate as to Counter-Plaintiffs on
Johnson's DTPA claim.
Fraudulent Court Record and Fraudulent Claims Against
claims that Counter-Plaintiffs violated Chapter 12 of the
Texas Civil Practice and Remedies Code by filing
"knowingly fraudulent documents" and asserting
fraudulent claims against real property in their initial
foreclosure action. Section 12.002(a) states that a person
may not make, present, or use a document or other record with
(1) knowledge that the document or record is a fraudulent
court record or a fraudulent lien or claim against real
property or an interest in real property, (2) intent that the
document be given legal effect, and (3) intent to cause the
plaintiff physical or financial injury or mental anguish.
Tex. Civ. Prac. & Rem. Code § 12.002(a).
Counter-Plaintiffs argue that Johnson has offered no evidence
to support his fraudulent court record and fraudulent claims
against real property claims. The court agrees.
as Johnson's claim relies on the invalidity of the
assignment from REMNI to Counter-Plaintiffs, he lacks
standing to challenge that assignment. See Reinagel v.
Deutsche Bank Nat. Trust Co., 735 F.3d 220, 227-28 (5th
Cir. 2013) (holding that a debtor lacks standing to challenge
an assignment to a third party on a basis that renders the
assignment merely voidable rather than void ab initio).
Johnson offers no response to the Counter-Plaintiffs'
evidence that BB&T holds the Note on behalf of Fannie Mae
and no evidence to support his allegations. Accordingly,
summary judgment is appropriate as to Johnson's claims of
fraudulent court record and fraudulent claims against real
Counter-Plaintiffs' Claim for ...